You are here

2007 Federal Sentencing Guidelines

CHAPTER SIX - PART B - PLEA AGREEMENTS

(a) In the case of a plea agreement that includes the dismissal of
any charges or an agreement not to pursue potential charges (Rule
11(c)(1)(A)), the court may accept the agreement if the court
determines, for reasons stated on the record, that the remaining
charges adequately reflect the seriousness of the actual offense
behavior and that accepting the agreement will not undermine the
statutory purposes of sentencing or the sentencing guidelines.

However, a plea agreement that includes the dismissal of a charge
or a plea agreement not to pursue a potential charge shall not
preclude the conduct underlying such charge from being considered
under the provisions of §1B1.3 (Relevant Conduct) in connection
with the count(s) of which the defendant is convicted.

(b) In the case of a plea agreement that includes a nonbinding
recommendation (Rule 11(c)(1)(B)), the court may accept the
recommendation if the court is satisfied either that:

(1) the recommended sentence is within the applicable guideline
range; or

(2) (A) the recommended sentence departs from the applicable
guideline range for justifiable reasons; and (B) those reasons are
specifically set forth in writing in the statement of reasons or
judgment and commitment order.

(c) In the case of a plea agreement that includes a specific
sentence (Rule 11(c)(1)(C)), the court may accept the agreement if
the court is satisfied either that:

(1) the agreed sentence is within the applicable guideline range;
or

(2) (A) the agreed sentence departs from the applicable guideline
range for justifiable reasons; and (B) those reasons are
specifically set forth in writing in the statement of reasons or
judgment and commitment order.

Commentary

The court may accept an agreement calling for dismissal of charges
or an agreement not to pursue potential charges if the remaining
charges reflect the seriousness of the actual offense behavior.
This requirement does not authorize judges to intrude upon the
charging discretion of the prosecutor. If the government’s motion
to dismiss charges or statement that potential charges will not be
pursued is not contingent on the disposition of the remaining
charges, the judge should defer to the government’s position except
under extraordinary circumstances. Rule 48(a), Fed. R. Crim. P.
However, when the dismissal of charges or agreement not to pursue
potential charges is contingent on acceptance of a plea agreement,
the court’s authority to adjudicate guilt and impose sentence is
implicated, and the court is to determine whether or not dismissal
of charges will undermine the sentencing guidelines.

Similarly, the court should accept a recommended sentence or a plea
agreement requiring imposition of a specific sentence only if the
court is satisfied either that such sentence is an appropriate
sentence within the applicable guideline range or, if not, that the
sentence departs from the applicable guideline range for
justifiable reasons (i.e., that such departure is authorized by
18 U.S.C. § 3553(b)) and those reasons are specifically set forth
in writing in the statement of reasons or the judgment and
commitment order. As set forth in subsection (d) of §5K2.0 (Grounds
for Departure), however, the court may not depart below the
applicable guideline range merely because of the defendant’s
decision to plead guilty to the offense or to enter a plea
agreement with respect to the offense.

A defendant who enters a plea of guilty in a timely manner will
enhance the likelihood of his receiving a reduction in offense
level under §3E1.1 (Acceptance of Responsibility). Further
reduction in offense level (or sentence) due to a plea agreement
will tend to undermine the sentencing guidelines.

The second paragraph of subsection (a) provides that a plea
agreement that includes the dismissal of a charge, or a plea
agreement not to pursue a potential charge, shall not prevent the
conduct underlying that charge from being considered under the
provisions of §1B1.3 (Relevant Conduct) in connection with the
count(s) of which the defendant is convicted. This paragraph
prevents a plea agreement from restricting consideration of conduct
that is within the scope of §1B1.3 (Relevant Conduct) in respect to
the count(s) of which the defendant is convicted; it does not in
any way expand or modify the scope of §1B1.3 (Relevant Conduct).
Section 5K2.21 (Dismissed and Uncharged Conduct) addresses the use,
as a basis for upward departure, of conduct underlying a charge
dismissed as part of a plea agreement in the case, or underlying a
potential charge not pursued in the case as part of a plea
agreement.

The Commission encourages the prosecuting attorney prior to the
entry of a plea of guilty or nolocontendere under Rule 11 of the
Federal Rules of Criminal Procedure to disclose to the defendant the facts and circumstances of the offense and offender
characteristics, then known to the prosecuting attorney, that are
relevant to the application of the sentencing guidelines. This
recommendation, however, shall not be construed to confer upon the
defendant any right not otherwise recognized in law.